Saturday, March 19, 2011

Saskatchewan rights'bill is regressive

So says Amnesty International and a professor of Social Work, but happily, they give all the reasons why the Bill (160) is necessary and important.

Tribunals were set up to hear human rights complaints -in Saskatchewan and across the country -for two key reasons: expertise and accessibility. Both are vital when something as fundamental and vulnerable as human rights is on the line.
A tribunal with a mandate focused on human rights can develop expertise in ways that even the most talented provincial court judge, whose docket spans a dizzying array of issues, can simply never achieve. Specialization helps strengthen human rights protection.
A tribunal is also a much more relaxed and less expensive setting than the formality and complexity of a courtroom. Rules of evidence are not as stringent. Claimants are not faced with the intimidation that comes with such trappings as lawyers and judges wearing robes. Given that human rights complainants very often come from marginalized, low-income communities, this informality goes far in boosting both comfort and confidence.
There is wide agreement that the human rights tribunal has faced challenges. Notoriously underfunded for many years and lacking basic institutional support, it is perhaps not a surprise that the average time for processing a case has climbed to a reported 21 months.
What is perplexing is to leap from recognizing the tribunals need repair to Bill 160's extreme proposal: get rid of them. There are many other possibilities, including increased funding, different approaches to appointing tribunal members, new rules of procedure and providing the tribunal with badly-needed infrastructure. There is no indication those options have been explored. If they have, there is no explanation why they were rejected. In the absence of that basic information one is left with the worrying prospect that this may be less about the professed concerns about efficiency and more about animus towards the tribunals.

So let's start with their first point: Specialization helps strengthen human rights protection. Except it all depends on WHOSE rights you are worried about. Personally, I'm worried about not just the complainant's rights, but also the accused. There have been some high profile cases across Canada which demonstrate that the last thing anybody in the Tribunal room, other than the defendant and his/her lawyer, is worried about are the rights of the accused - the right to a fair proceeding, the right to view all of the evidence against the defendant, and of course, the right to a reasonable defense of actions. None of these are present in the Tribunal, and with a virtually 100% conviction rate, there has been no effort to include these elements in the proceedings. Specialization does not strengthen human rights protection, it takes away those same protections at the hands of a group of people with no interest in fairness.

Rules of evidence are not as stringent. Personally, I would like Watkinson and Neve to explain to me how this can be a good thing. The rules of evidence in court are stringent precisely to ensure that basic fairness and civility exist for both parties. The rules of evidence exist to ensure that people can not be wrongfully convicted on hearsay or circumstantial evidence.

Third, average time for processing a case is 21 months. That's just about 2 years after the tribunal has been handed the case from the the Human Rights Commission's attempts at mediation and settlement. I don't see how this is a reason to keep the Tribunals given that if the case goes through the regular courts, it would be settled within that time.

The minor points put forward include the fact that defendants would feel more comfortable in this setting than in a regular courtroom setting, but to be quite frank, the last thing EITHER party should be is comfortable in the courtroom. The Human Rights industry doesn't need people employed full time in it. The Human Rights industry doesn't need people who specialize in these cases. The Human Rights industry doesn't need more resources or infrastructure. What the Human Rights industry needs is a devotion to mediating disputes between injured and injurers. It needs a devotion to weeding out true victims of prejudice or racism from those with hurt feelings and an axe to grind. It needs an incentive for the "victims" to only risk their case going before a judge if they are sure that no other outcome will do.

Also preoccupying are two new grounds for rejecting human rights complaints before they even reach the stage of a hearing. One is the open-ended possibility that "having regard to all of the circumstances" the commissioner concludes a hearing is "not warranted." Surely something as serious as dismissing someone's human rights complaint deserves less arbitrary criteria.

The other is that if, during mediation, a complainant turns down a settlement offer that the commissioner considers "fair and reasonable" that is the end of the road. The complaint will be dismissed. It's a decidedly coercive approach to mediation. Of course it is beneficial to persuade complainants to accept reasonable settlement offers. But the bottom line is that the human rights at stake belong to the individual who made the complaint, not to the commission. If he or she makes an informed decision not to opt for a full hearing instead of settlement -that choice should be respected. That is what human rights are all about.

As it sits currently, there are no reasons why a Human Rights case does not go before a Tribunal. ALL cases go before the Tribunal, regardless of merit. By giving Commissioners two "outs" to avoid a Tribunal, the new law gives the Human Rights Commission the power and the ability to weed out the cases with merit from the cases without, possibly reducing the workload of the judges who have to hear the cases.

As for this:

A tribunal with a mandate focused on human rights can develop expertise in ways that even the most talented provincial court judge, whose docket spans a dizzying array of issues, can simply never achieve. Specialization helps strengthen human rights protection.

There is no law which supersedes the Constitution and the Bill of Rights. A Judge on the bench spends day after day interpreting and judging cases based on these very documents. To argue that a judge can not properly judge a case simply because he or she doesn't judge these cases regularly diminishes the knowledge and experience of those same judges.

The most important part of these changes, is that it takes the power away from the Human Rights industry and puts it into the hands of those who have absolutely no stake in retaining the status quo. It's no wonder that Amnesty International opposes the legislation.